1. These are an appeal and a cross appeal arising out of the original Suit No. 152/61 on the file of District Munsif's Court, Guntur filed by three plaintiffs in a representative capacity against the Guntur Municipality represented by its Commissioner and Special Officer for a declaration that the notice dated 14-3-1961 under Section 241 of the District Municipalities Act issued by the defendant to the effect that the unlicensed dogs straying within the Guntur Municipal limits would be destroyed from 1-4-1961 is void, illegal and without jurisdiction and the consequential permanent injunction restraining the defendant Municipality and its subordinates from catching and destroying dogs in pursuance thereof or in the alternative for a permanent injunction restraining the defendant Municipality and its subordinates from catching the dogs with the aid of scissors or from beating or clubbing them with sticks or from putting them in cage and killing them by cynogassing.
2. The three plaintiff are residents of Guntur. They asserted that the destruction of stray unlicensed dogs is opposed to Hindu sentiments and to the most fundamental tenet of Jain religion to which community the theirs plaintiff Modmal belongs. The 2nd Plaintiff is the secretary of Jeevarakshaka Sangham. It is asserted in the plaint that Section 241 of the District Municipalities Act under which the impugned notice was issued by the Municipality is opposed to Art. 48 of the Constitution as also the provisions of the prevention of Cruelty to Animals Act 2 of 1890 and that therefore, it should be struck down.
3. The defendant Municipality raised various pleas, it has pleaded that the destruction of stray dogs is absolutely essential to preserve public health as statistics show that the number of cases of rabies is on the increase. It has pleaded that the provisions of the Prevention of Cruelty to Animals Act are followed in that the least painful method namely, cynogassing is adopted to kill the dogs. It has further pleaded that the religious sentiments is not a matter to be considered in the present context.
4. The second issue was framed as 'whether the impugned order of the defendant is void and unenforceable for any of the reasons mentioned in the plaint'. In the trial Court the stand taken by the defendant Municipality was that the stray dogs were being destroyed in as human a manner as possible, i.e., by cynogassing after placing the dogs in the lethal chamber. So, the main question that was considered by the Courts below was what was the method by which stray dogs were being caught by the Municipal servants and by which they were being destroyed and whether those methods were cruel methods within the meaning of section 5 of the Prevention of Cruelty to Animals Act 2 of 1890. In the trial Court the plaintiff challenged the vires of section 241 of the District Municipalities Act itself. The said section reads:
(1) 'The council may, and if so directed by the District Magistrate, shall give public notice that unlicensed pigs or dogs straying within the specified limits will be destroyed.
(2) When such notice has been given any person may destroy in any manner not inconsistent with the terms of the notice, any unlicensed pig or dog (as the case may be) found straying within such limits.'
The trial Court as well as the appellate Court have now held that the section is not ultra vires. The next question that was considered by the Courts below was whether the method by which the stray dogs were being caught and destroyed was unnecessarily cruel within the meaning of Section 5 of the Prevention of Cruelty to Animals Act, 1890. The said Section reads:
'If any person kills any animal in an unnecessarily cruel manner, he shall be punished with fine which may extend to two hundred rupees or with imprisonment for a term which may extend to six months or with both.'
There can be no doubt in my view of this section if any person kills any animal in an unnecessarily cruel manner could be liable to be punished under Section 5 of the Prevention of Cruelty to Animals Act.
5. Both the lower Courts discussed the evidence and stated the manner in which stray dogs were being caught in the Guntur Municipality and were being destroyed. With regard to the manner in which the stray dogs are caught , the trial Court's judgment deals with it in the following manner in paragraph 14.
'P. Ws. 1 to 3 have stated that along curved pair of scissors with a loop between the curving blades is used to catch these dogs. when the blades of the scissors are closed the neck of the dog gets cut and it starts bleeding profusely. They stated that at times even in the act of being caught a dog dies. It is then stated that the dog so caught will be put in a small cage. This cage usually will be just sufficient to keep about half a dozen dogs at the most comfortably. IN such a small cage more than a dozen dogs are said to be thrust, and the process of death is said to start from then on. The fact the dogs are caught by a sharp-edged scissors and that they are put in cage which are hardly sufficient to accommodate them, is not seriously disputed. There is no evidence on the side of the defendant to deny the version is sufficient to show that dogs are caught in cages, which are too small to hold them in large numbers. I find accordingly.
There can possibly be no doubt that the method described above was a very cruel method by which the stray dogs were being caught in the Guntur Municipality. But still the trial Court held that the fact that the dogs are cruelly treated does not warrant an injunction being issued against the defendant in the absence of any breach of any provision of law, and that S. 3 of the Central Act 2 of 1890 was not enough. The trial Court only expressed a pious hope that the defendant Municipality will adopt a more civilised method of catching unlicensed stray dogs. It is stated that till today that hope has only remained a pious hope, the Municipality not having devised any humane method for catching stray dogs. Then the trial Court pointed out that neither S. 241 of the District Municipalities Act not the notice issued by the Municipality which gave rise to the suit indicated the method of killing and that therefore, the section and the notice cannot be declared void. It any one acted contrary to the provisions of Section 5 of Central Act 2 of 1890 he could be prosecuted.
6. As regards the method adopted by the Municipality for destroying the stray dogs after they were caught in the most cruel and inhuman matter noticed above the trial court dealt with it in paragraph 11 of its judgment as follows:
'On the other hand there is the evidence of P. W. 3 who is a clerk working in the Jeevrakshaka Sangham of which Plaintiffs 1 and 2 are members. He stated that the lethal chamber referred to by the defendant is a rectangular pit of about 4 yards depth. The dogs that are caught are pushed into this pit and then covered with a big wooden piece and left to die on account of asphyxiation. He stated that no poisonous gas is let into that chamber. In his cross-examination it is not even suggested that he never witnessed the lethal chamber of the defendant, where the dogs are killed. So the evidence of this witness has to be accepted in preference to that of D. W. 1 who admittedly never witnessed either the lethal chamber or the manner in which the dogs are killed. The evidence of Sri N. V. L Narashimharao, P. W. 4 who was the Municipal Chairman in 1958 to the effect the defendant has no scientific apparatus to kill the dogs also probable P. W. 3's evidence. It follows that the defendant has failed to substantiate its claim that it is killing the dogs by administering cynogas. If the method adopted by the defendant to kill dogs is to allow them to die by suffocation there cannot be any two opinions on the facts that is it the most painful death than any one can visualise.'
I am in entire agreement with the view expressed by the trial court on this point. But the trial Court in paragraph 22 of the judgment declined to pass a decree in the terms prayed for by the plaintiffs. But the suit was decreed for a declaration and permanent injunction restraining the defendant Municipality from killing licensed dogs in pursuance of the notice Ex. B 13. the rest of suit claim was dismissed. The plaintiffs appealed to the Court of the Subordinate Judge, Guntur.
7. As regards the method by which the stray dogs were being caught and were being destroyed the learned subordinate judge was substantially in agreement with the view of the trial Court. But there is a mistake in the judgment of the learned subordinate judge when he stated that the plaintiff's witness gave evidence to the effect that the stray dogs were being destroyed by cynogassing. The plaintiffs' witnesses merely deposed that the dogs were being thrust into pit which would be closed thereafter and they would be left there till they die of asphyxiation, in my opinion the method followed by the defendant Municipality for catching the stray dogs and destroying them is unnecessarily cruel.
One can only imaging what a ghastly sight it would be when a stray dog is caught in the manner noticed above, in public. What an effect it would be on those who are not acquisitioned to cruelty when they witnessed the dogs being caught in that manner can only be imagined. That such things are permitted by a responsible Municipality is utterly inexplicable. It is often said that the most inhuman and cruel of Gods's creation are those that are referred to as human beings. The facts of this case really prove the truth of that statement.
8. The learned Subordinate Judge on those findings passed a decree restraining those findings passed a decree restraining the defendant by means of a permanent injunction from destroying the unlicensed dogs by putting them to death by cynogassing in lethal chamber with effect from 1-11-1963 and confirmed the rest of the decree of the trial Court. The decree of the Courts below are not happily worded. The findings of the trial court and the evidence adduced on behalf of the plaintiffs was to the effect that even the dogs are left in the pit merely to suffocate to death. The decree of the learned Subordinate Judge does not, in my opinion, imply that the Municipality can kill the dogs by mere asphyxiation and that it is prevented from killing by cynogassing. I make this clear by directing that the decree of the learned Subordinate Judge be amended by stating that the Municipality is not entitled to destroy the stray dogs either by cynogassing or by mere asphyxiation by putting them in a put an allowing them to die by asphyxiation.
9. There is one important matter which the decree of the learned Subordinate Judge failed to embody I. e., an injunction restraining the Municipality from catching the stray dogs by means of the Courts below there shall be a clause in the decree restraining the Municipality from following this method of catching the stray dogs.
10. I agree with the Courts below that a declaration cannot be given that section 241 of the District Municipalities Act is ultra vires and void or that the notice Ex B-13 in so far as it directed the catching of unlicensed dogs and destroying them is void. The dismissal of the plaintiff's claim to that extent is right.
11. In S. A. 369/63 filed by the Guntur Municipality, it is argued that the suit has to be dismissed because under Section 5 of the Prevention of Cruelty to Animals Act the Municipality if at all, can be punished if it contravened that section and that the civil Court has no jurisdiction restraining the Municipality from destroying the stray dogs in the manner it was doing. I am unable to accept this contention. The Municipality is a public body and the plaint was filed in a representative capacity by the three plaintiffs. The concurrent findings of the Courts below is that the Municipality is kicking and destroying the stray dogs in an unnecessarily cruel manner. Therefore, I am unable to hold that no relief can be granted to the plaintiffs merely for the reason that Section 5 of Act 2 of 1890 does not warrant the issued of an injunction against the Municipality with regard to the manner of killing and destroying the stray dogs.
12. I do not find that it was contended in either of the Courts below that a suit at all of this kind is not maintainable, in the sense, that the plaintiffs will have no locus standi to file the suit. Therefore, that question was not argued before me and considered by me. The only point that is decided by me is assuming that the plaintiffs had the right to maintain the suit, whether the decree for injunction was properly granted in the circumstances of the case.
13. The result is that Second Appeal No. 141/63 is allowed in part to the extent indicated above viz., issue of an injunction with respect to the manner in which the stray dogs are being caught by the Municipality and also issue of an injunction directing the Municipality not to destroy the stray dogs either by mere asphyxiation or by cynogassing. In this view, the Second Appeal 369/63 fails and is dismissed.
14. It may be noticed that even on 17th of March, 1956 the Government passed a G. O. Ms. 468 Local Administration Department. Therein the Government pointed out that destroying the stray dogs either by clubbing or by cynogassing them is very crude and should be stopped immediately as even in the case of cynogassing the dogs would scream when they die and since they are killed in groups they see one another in agony. Paragraph 3 of Said G. O. shows that the Government consulted the Director of Public Health and Director of Animal Husbandry for commending to the local bodies effective, quick and humane method of destroying the stray dogs and ultimately the Government came to the consultation that under the circumstances the only method of destroying the stray dogs was by electrocution and had advised the local bodies to take steps to adopt that method wherever possible in consultation with the Director of Public Health and Inspector General of Local Administration and report to the Government the special difficulties, if any, standing in the way of implementing it. More than ten years have passed since the said G. O. was issued. There is nothing on record and nothing is stated before me during the course of the argument, to show that the defendant Municipality sought to implement the advice given by Government in the said G.O. This is a very unfortunate state of affairs .It is stated by the learned counsel appearing for the Municipality that the necessary apparatus to destroy the dogs by electrocution cots a substantial sum of money. No doubt very probably it is so. But still to follow an unnecessarily cruel and inhuman method in destroying the stray dogs cannot be permitted. I am fully aware of the fact that the incidence of rabies may increase if stray dogs are not destroyed. But then, the Municipality must provide sufficient funds for acquiring necessary apparatus for destroying the stray dogs in humane manner. The parties will bear their own costs in these two second appeals. Leave to appeal for both is granted.
15. Order accordingly.